Outsourcing censorship: ICANN, Inc. insists on it!

In a rather shocking development, ICANN’s staff is trying to reject key consensus recommendations regarding the censorship of new top level domains. The staff's “explanatory memo” on why it is trying to discard the decisions of a Cross-community Working Group show a complete lack of interest in the freedom of expression implications of the new gTLD objection process. The focus is, instead, on lowering legal and financial risks to the Corporation. A conference call tomorrow (Monday, November 15) may be able to alter this. But the staff position, if it remains in place, will fuel many of the concerns IGP and others have expressed regarding ICANN, Inc.’s status as an international institution. ICANN’s policy process looks out for its own interest as a corporation first and foremost, and it lacks accountability to its stakeholders, because there is no requirement to follow the results of its own vaunted bottom-up processes.

The Cross-community Working Group on Recommendation 6 (CWG), which dealt with so-called morality and public order objections, engaged in extensive deliberations in August and September 2010. The CWG contained representatives of the GAC and the At Large Advisory Committee and the GNSO. Many were surprised by how rapidly and effectively the group reached consensus on so many areas of this contentious issue. Now the staff seems to be tossing out all that work. (For a discussion of the CWG's results on the IGP blog in September, see this.)

The key issue is who makes the decision to censor domains. The CWG recommended unanimously that the Board be made directly responsible for any decision to veto domains, and achieved strong support that a 2/3 supermajority be required for an adverse decision. While CWG proposed that the board be allowed to consult with independent experts, it recommended that they only provide advice to the Board, not that the decision itself be made by them. There were two reasons for this recommendation. One was to ensure that the exercise of censorship by the board would be handled transparently and very carefully. If the Board makes the decision directly then it is clear who voted for or against censoring a domain, and there is no ambiguity about who is responsible for the decision. The other reason for rejecting a DRSP was derived from our experience with the domain name trademark dispute resolution process (UDRP). It was felt that a private dispute resolution provider that collects fees from responding to objections would develop a vested interest in the exercise of censorship. Such a provider would develop an objector’s bias, just as WIPO and other UDRP service providers have developed a complainants’ bias. For both reasons, the implications for freedom of expression of outsourcing censorship to a commercial dispute service provider are quite bad.

The CWG achieved a high level of agreement on these points. But in its analysis of the Cross-community Working Group report, ICANN staff has insisted on outsourcing the decision to censor new top level domains. The staff report makes it clear exactly why this is happening: it is considered by them to be a very important part of a “risk mitigation strategy” for ICANN, Inc. “Without outside dispute resolution,” the staff wrote, “ICANN would have to re-evaluate risks and program costs overall.”

What a startling admission! ICANN’s lawyers are telling the board that if it makes the decision directly and by themselves, they might be held accountable legally. And indeed, isn’t that how things are supposed to work? Before you suppress anyone’s rights to expression you ought to be very careful, and if you do so without justification or arbitrarily, the victim should have legal recourse. But the staff is telling us that ICANN wants to be able to censor expression with minimal consequences. In order to achieve that goal it is proposing to launder the decision by outsourcing it to a private dispute resolution service provider. Then they can claim that “experts made the decision, not us.” This is a disgraceful act and must not stand.

There were other odd aspects to the staff report. The CWG unanimously agreed to discard “morality and public order” as a label describing the objection and recommended using another term. The label with the strongest support in the group was “Objections Based on General Principles of International Law.” Interestingly, even the former CEO of ICANN, Paul Twomey, supported that label in the public comment period, offering an eloquent explanation of why we need to keep the scope of the objections narrow and tied to law – not “interests” or “sensitivities” or any other mushy rationale. The CWG considered, and strongly rejected the term “public interest” as the basis for objections because that is far too broad and subjective a term. Claims that a TLD string or concept is not in “the public interest” could be made about virtually anything. And yet, the staff has chosen to re-label Recommendation 6 as “limited public interest” (LPI). This arbitrary and groundless change can probably be reversed. It is much more desirable to base objections on “general principles of international law” and ICANN staff has no valid rationale for choosing the term it did.

The staff has also refused to implement changes proposed to the role of the Independent Objector. There was broad consensus in the CWG that it was a bad idea to give an essentially unaccountable individual an untrammeled right to initiate censorship requests on his or her own. The staff insists on creating this monster, however.

As noted, a re-convening of CWG to confer with the almighty staff will be held tomorrow. Hopefully it will produce positive results.